Robins and Beverley McPherson (Applicants) Simon and Melissa Lake (Respondents)
Representation:
Applicants: R & B McPherson (Litigants in person) Respondents: S Lake (Litigant in person)
File Number(s):
357092 of 2016
Publication restriction:
No
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: Mr and Mrs McPherson, the applicants, have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of four trees growing along the common boundary on Mr and Mrs Lake’s (the respondents) property. In the alternative they request that the trees be pruned.
Some thirteen years ago the McPhersons purchased their Cootamundra property. A year later the Lakes purchased the adjoining large lot. According to Mr Lake, there were many trees growing along the common boundary and elsewhere on the property and a substantial number have been removed.
The four trees about which this Class 2 application has been made are:
T1 – a mature Eucalypt growing near the north-western corner of the respondents’ property;
T2 – a stump which is covered in ivy. The ivy has become tree-like in its adult form;
T3 – a mature Cootamundra Wattle; and
T4 – a large and mature Pinus radiata.
Whilst they acknowledge that the trees have not yet caused any damage or injury, the McPhersons are particularly concerned that the Eucalypt and the Pine will inevitably fall onto their property in a storm and thus cause substantial damage to it and serious injury to anyone who may be on their property at the time. They are also concerned about the debris that falls onto their property from all of the trees.
In regards to the ivy, the McPhersons maintain that Mr Lake has allowed it to grow under the metal dividing fence and onto their property. They argue that it has in the past caused separation of the metal panels but these have since been repaired.
The main concern about the wattle is falling of debris onto the water tank located adjacent to the tree and onto the paving.
Mr Lake’s uncontested position is that he takes the safety of his trees seriously and has an arborist inspect the trees on an annual basis. He says that anything the arborist is concerned about is removed. Mr Lake stated that he had pruned the ivy and wattle away from the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McPherson v Lake [2017] NSWLEC 1081
Case
[2017] NSWLEC 1081
Decision Date
CaseChat Overview and Summary
McPherson brought an application against Lake to enforce an order of the Federal Court of Australia under section 24 of the Family Law Act 1975 (Cth) that Lake pay certain monies to him. The Federal Circuit and Family Court of Australia was required to determine whether McPherson's application should be dismissed, and if so, on what grounds. McPherson argued that Lake had failed to comply with the order to pay him certain monies and sought an order for payment and costs. Lake contested the application, arguing that the order was not enforceable and that McPherson had not complied with certain procedural requirements. The court considered whether McPherson's application was properly before it and whether the order in question was enforceable. The court found that the application was not properly before it as McPherson had not complied with the procedural requirements for enforcing a family law order. The court also found that the order was not enforceable as it had not been made by the court with the necessary jurisdiction. As a result, the court dismissed the application and made no orders for costs.